Orgas Virginia Carerra Alias Carerre, Virginia Alias Orgas, Virginia Alias Orgas, Virginia C. v. Torture Claims Appeal Board

HCAL 494/2022

[2025] HKCFI 1214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 494 OF 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of the Philippines who arrived in Hong Kong on 10 October 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 2 November 2020, she did not depart and instead overstayed, and on 24 February 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her boyfriend over their domestic dispute. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Dagupan City, Pangasinan, the Philippines. After leaving school she worked as a domestic helper to make her living, formed a relationship with her boyfriend and raised a family with 3 children in her home district.

3.In 2019 she started to come to Hong Kong to work as a foreign domestic helper, during which she met and formed a relationship with another man in Hong Kong, but which was discovered by her boyfriend in the Philippines in January 2021 when he saw photographs posted by her on social media of her with the man in Hong Kong that he telephoned her from the Philippines to threaten to kill her, and so the Applicant ceased all further contacts with her boyfriend in the Philippines, but when her last employment was terminated, she was afraid to return to the Philippines and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 October 2021 and attended screening interview before the Immigration Department with legal representation.

4.By a Notice of Decision dated 28 December 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her boyfriend upon her return to the Philippines as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her boyfriend to seriously harm or kill her other than some angry words or empty threatens uttered one time on the phone, that in any event it was a private domestic dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 110 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Davao or Cebu where it would be difficult if not impossible for her boyfriend to locate her.

6.On 10 January 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but shortly thereafter on 11 April 2022 and before her appeal could be heard by the Board, the Applicant in writing applied to withdraw her appeal/petition as it was safe for her to return to her home country, and upon being satisfied that her application to withdraw her appeal/petition was freely sought, that she understood the consequences of the withdrawal, and that she had good reason to do so, the Board by a Notice dated 25 April 2022 directed that the Applicant’s appeal/petition be withdrawn and finally disposed of, and that the Director’s decision shall remain final.

7.However, less than 2 months later on 16 June 2022 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the Board’s decision but without putting forth any ground for her intended challenge thereof or any explanation or reason for her to do so. As such, and in the absence of any error of law or irrationality or procedural unfairness in her application to the Board for the withdrawal of her appeal/petition or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

8.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

9.In the Applicant’s case, the Board disposed of her appeal by acceding to her request to withdraw it upon being satisfied that her withdrawal was genuine and valid with good reasons that there is simply no proper or legal basis for her to subsequently want to challenge such decision of the Board without any evidence that her such withdrawal was not valid for any proper reasons, as notwithstanding the lack of determination on the merits of her claim or appeal by the Board, the dismissal of her appeal on its withdrawal nevertheless disposed of the appeal: see Re Das Purnima Rani [2019] HKCA 669. As such, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

10.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to withdraw/dismiss her appeal at her own request based on her stated reasons.

12.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

13.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order to the Applicant in the Philippines.

Dated the 8^th day of April 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1